How Does COVID-19 Affect Bail Applications in NSW?

On 30 March 2020, the Supreme Court of New South Wales handed down a decision granting conditional bail to Mr Abdul Rakielbakhour who was accused and charged with serious domestic violence charges.

Mr Rakielbakhour was arrested and charged with common assault and assault occasioning actual bodily harm, alleged to have occurred against his wife inside her home on 26 February 2020.

On the police’s version, his wife suffered injuries on her face as a result of physical abuse from her husband Mr Rakielbakhour. The police allege that:

“the accused punched the victim repeatedly to the face and body, before tackling her to the ground and continuing to punch her. The accused took hold of a hair dryer and hit the victim with the hair dryer to her face and heard. The accused’s assault on the victim inflicted physical injuries to her causing significant bruising and swelling around both of her eyes, a 2-3 cm laceration to her forehead, and scratches to her neck area.”

The police say that his motivation to do this to her was jealousy, after he suspected she was having an affair with a real estate agent.

Police arrived at the home after a neighbour called police complaining of screams coming from their house.

Police also say that they noticed her in distress with injuries on her face, on the same day.

When police arrived, a neighbour was also at their house who has allegedly said, “she’s all bashed”.

Mr Rakielbakhour denied the allegation, and pleaded ‘not guilty’ in court. He told police that she already had those injuries on her when he had arrived home that day no one else was present. The court noticed this to be inconsistent and unlikely to be true, largely because there is evidence shows that her injuries appeared to be fresh upon police arrival, and because of the neighbours evidence before police arriving.

The police evidence encountered a problem in their case, namely, the fact that his wife refused to give evidence in the case. In fact, she told police that she sustained those injuries because of falling in the shower and hitting her head on the step.

Mr Rakielbakhour previously committed common assault back in 2008. He runs a successful business, has strong community ties with family and community support.

All parties involved in his bail application at court, including the court, lawyers and Mr Rakielbakhour weren’t physically present in court as each appeared virtually by way of Audio-Visual Link (AVL) in response to the Coronavirus pandemic.

In granting bail to Mr Rakielbakhour, the COVID-19 pandemic in a way had a significant part to play in the court’s decision in favour of granting bail for the following reasons:

Jails and correctional centres are susceptible to the virus’s rapid spread, and it’s extremely difficult to successfully implement in jail the kinds of restrictions being implements in the community. There’s a higher risk of serious infections to people residing in group settings like prison.

Inmates have been kept in cells for longer than usual, and have had all visits by family and friends suspended due to the pandemic.

Most court cases are being delayed, with hearings and trials being vacated and relisted pending the pandemic situation- without any indication as to when these cases can be finally heard and concluded. This will mean that those people who’re refused bail or haven’t applied for bail are waiting for their cases to be concluded are waiting longer than expected whilst in custody.

Those in jail, will likely have higher anxiety levels due to the virus being able to spread fast in prison if anyone happens to contract the virus in custody.

A website by the Australian Government’s Health Department shows that on 27 March 2020, there were nearly 3,000 recorded cases of people who’ve contracted the virus. Only 3 days later, that number went up to just over 4,000. In only NSW, over the same 3-day period, the numbers went up from 1405 to 1918.

Due to the medical crisis, Parliament has had to introduce emergency laws to allow the Commissioner to stop or restrict inmates in prisons having visitors, to grant early parole to inmates which reflects how serious the situation really is. Iran for example have released thousands of inmates from prison in efforts to contain the dangers the virus poses to public health.

For bail to be granted, section 18 Bail Act NSW requires the Court to take into account the following factors relevant to COVID-19 in light of the above:

The need to be free for any lawful reason under section 18(1)(m): here, there is a need to protect himself from the virus, especially where Mr Rakielbakhour already suffers a medical illness.

Length of time he will end up being in custody on remand if refused bail under section 18(1)(h): here, due to the pandemic, courts cases are being delayed indeterminately.

Ability for Mr Rakielbakhour to get legal advice and prepare his case will be impacted as the prisons and courts resources are now mostly taken up by electronic AVL or virtual methods, leaving more limited opportunities for inmates to conduct legal visits via AVL conferences with their lawyers. Section 18(1)(I) allows this to be considered by courts.

Special vulnerability under section 18(1)(k): Indigenous Australians are susceptible to the virus in particular. This isn’t relevant for Mr Rakielbakhour, but will be for those applying for bail who’re indigenous.

Some of the bail conditions included for him to be of good behaviour, reside at a specified address, report to the police station on Monday, Wednesday and Friday weeks between 8am and 10am, to appear on the next court date, house arrest except in certain specified situations, security of $10,000 cash be deposited.

The above decision of the Supreme Court is significant to not only jail inmates, but also legal representatives acting on behalf of individuals in custody.

I n summary, this decision recognises the need to take into account the effects of the COVID-19 pandemic, and to recognise needs of inmates and prisoners who may be more vulnerable than the general population due to the restrictive conditions and confined nature of their incarceration.